Does Political Criticism Of Judges Damage Judicial Independence?

In a new paper for Policy Exchange’s Judicial Power Project the Honourable Dyson Heydon AC QC, former Justice of the High Court of Australia, asks Does Political Criticism of Judges Damage Judicial Independence?

In the paper, Mr Heydon challenges the conventional wisdom that suggests that criticism of judges by politicians damages judicial independence. He upends the commonplace claim that says that judicial decisions should not be criticized because it is not open to judges to defend themselves. As Heydon notes, there are multiple defensive avenues open to judges, including recourse to the law of contempt. Drawing on last year’s threatened contempt of court of three state ministers in Victoria, Mr Heydon argues that judges who seek to preserve judicial independence in response to ministerial criticism by threatening use of the contempt power might ultimately undermine the very independence they seek to protect.

Mr Heydon discussed several of the themes covered in this paper last month at a seminar convened by Policy Exchange’s Judicial Power Project. The other participants in the seminar were Lord Thomas (the former Lord Chief Justice), Lord Falconer (the former Lord Chancellor) and Professor Graham Gee (University of Sheffield and Policy Exchange’s Judicial Power Project).